Citation Nr: 0914717
Decision Date: 04/20/09 Archive Date: 04/29/09
DOCKET NO. 08-27 279 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Murray, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Navy
from September 1942 to February 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office in St.
Petersburg, Florida (RO), which in pertinent part, denied the
benefit sought on appeal.
The Board notes that in the July 2007 rating decision the RO
also denied the Veteran's claim of service connection for
diabetes mellitus. In a December 2007 notice of
disagreement, the Veteran initiated an appeal as to that
issue; however, in a June 2008 statement, the Veteran
withdrew that appeal.
In June 2008, the Veteran testified in a hearing before a
Decision Review Officer at the RO, and a transcript of that
hearing is contained in the record. The Veteran also
testified before the undersigned judge in a January 2009
Travel Board hearing at the RO. A transcript of that hearing
has been associated with the record as well.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDING OF FACT
The preponderance of the evidence is against a finding that
the Veteran's bilateral sensorineural hearing loss is related
to service or that the bilateral hearing loss manifested to a
compensable degree within a year following separation from
active duty.
CONCLUSION OF LAW
Service connection for bilateral hearing loss is not
warranted. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 &
Supp. 2008); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309,
3.385 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
1. Duty to Assist and Notify
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the United States Department of Veterans Affairs has
a duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
VA is required to notify the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. VA will inform the veteran, which information and
evidence VA will seek to provide, and which information and
evidence the claimant is expected to provide. 38 C.F.R.
§ 3.159(b). VA must provide such notice to the claimant
prior to an initial unfavorable decision on a claim for VA
benefits by the agency of original jurisdiction (AOJ), even
if the adjudication occurred prior to the enactment of the
VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120
(2004). These VCAA notice requirements apply to all elements
of a claim for service connection, so VA must specifically
provide notice that a disability rating and an effective date
will be assigned if service connection is awarded.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Here, prior to the July 2007 RO decision in the matter, VA
sent a letter to the Veteran in February 2007 that fully
addressed all notice elements concerning his bilateral
hearing loss claim. The letter informed the Veteran of what
evidence is required to substantiate the claim, and apprised
the Veteran as to his and VA's respective duties for
obtaining evidence. VA has also informed the Veteran how it
determines the disability rating and the effective date for
the award of benefits if service connection is to be awarded.
Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board
finds that the VCAA duty to notify was fully satisfied as to
the Veteran's claim.
In addition to its duty to notify, or inform, the Veteran
with regard to his claim, VA also has a duty to assist the
Veteran in the development of the claim. This duty includes
assisting the Veteran in the procurement of service treatment
records and records of pertinent medical treatment since
service, and providing the Veteran a medical examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
As to the duty to assist in the procurement of records, the
Board finds that in this case VA has made reasonable efforts
to obtain any available pertinent records as well as all
relevant records adequately identified by the Veteran. VA
provided the Veteran with an audiology examination in May
2007. The Veteran contends that the May 2007 examination was
inadequate, and that another VA examination is necessary to
determine whether his disability is related to service. The
Board disagrees.
At the time of the May 2007 VA examination, the examiner
reported that the Veteran's service records did not contain
any indication of hearing loss in service, nor did the
evidence of record show any hearing loss within a few years
after discharge. The evidence of record showed that the
Veteran did not seek treatment for his hearing loss until
September 2000, over five decades after his service. The May
2007 examiner concluded that there was insufficient evidence
in the record to determine that the Veteran's disability is
related to service without resorting to speculation. For
this reason, the Board finds that any additional VA
examination would only create cumulative and redundant
findings and, ultimately, would not assist in the
adjudication of the Veteran's claim.
The Veteran has not identified, and the record does not
otherwise indicate, any additional existing evidence that is
necessary for a fair adjudication of the claim that has not
been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993).
For the foregoing reasons, the Board therefore finds that VA
has satisfied its duty to notify and its duty to assist
pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West
2002 & Supp. 2006); 38 C.F.R. §§ 3.159(b), 20.1102 (2006);
Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183
(2002).
Legal Criteria
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2008).
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (2008). Regulations also provide that
service connection may be granted for a disability diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disability is due
to disease or injury which was incurred in or aggravated by
service. 38 C.F.R. § 3.303(d).
In addition, certain chronic diseases, including organic
diseases of the nervous system, such as sensorineural hearing
loss, may be presumed to have incurred during service if they
become manifested to a compensable degree within one year of
separation from active duty. 38 U.S.C.A. §§ 1101, 1112,
1113; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792-
67793 (Nov. 7, 2002).
To prevail on the issue of service connection, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999).
In addition to the rules regarding service connection in
general, there are additional considerations for addressing
claims of entitlement to service connection for sensorineural
hearing loss.
Under the laws administered by VA, a certain threshold level
of hearing impairment must be shown in order for hearing loss
to be considered a disability. Impaired hearing will be
considered a disability when the auditory threshold in any of
the frequencies at 500, 1,000, 2,000, 3,000 and 4,000 Hertz
is 40 decibels or greater; or when the auditory threshold for
at least three of the frequencies at 500, 1,000, 2,000, 3,000
and 4,000 Hertz are 26 decibels or greater; or when speech
recognitions scores using the Maryland CNC test are less than
94 percent.
38 C.F.R. § 3.385.
The determination as to whether the requirements for service
connection are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2008).
If there is at least an approximate balance of positive and
negative evidence regarding any issue material to the claim,
the claimant shall be given the benefit of the doubt in
resolving each such issue. 38 U.S.C.A. § 5107 (West 2002);
Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38
C.F.R. §§ 3.102 (2008). On the other hand, if the Board
determines that the preponderance of the evidence is against
the claim, it has necessarily found that the evidence is not
in approximate balance, and the benefit of the doubt rule is
not applicable. Ortiz, 274 F.3d at 1365.
Factual Background and Analysis
The Veteran claims entitlement to service connection for
bilateral hearing loss. Specifically, he attributes his
claimed hearing loss to acoustic trauma caused by exposure to
ship engine noise while in service.
A review of the Veteran's service record showed that the
Veteran served in the United States Navy as a mechanic, a
specialty that worked in close proximity to engine noise.
The Veteran's service records also showed that he was
stationed on the U.S.S. LST 1032, and that while the Veteran
was on board the ship, it participated in a number of
engagements in the Asian-Pacific during World War II.
The Veteran's service treatment records included the report
of a February 1946 discharge examination, which showed that
on an audio evaluation the Veteran's hearing measured
normally at 15/15, bilaterally, on spoken voice measurement.
See Smith v. Derwinski, 2 Vet. App. 137, 138, 140 (1990).
In March 1948 and June 1984, the Veteran filed claims for
outpatient treatment coverage for a dental condition. The
Veteran did not indicate that he had any hearing loss or
problems with his hearing on either of those applications.
When he filed his initial application for benefits for
hearing loss, he reported that such had begun in 1997.
The Veteran's claims file contains his treatment records from
VA Medical Center in West Palm Beach, Florida (VAMC). The
records include reports of two audiological tests conducted
on the Veteran, dated September 2000 and November 2006. Both
audio reports showed that the Veteran had bilateral hearing
loss as defined by 38 C.F.R. § 3.385. Although both
examiners noted that there was "visible or traumatic
deformity of an ear" bilaterally, neither examiner indicated
whether the trauma to the ears was related to service.
Further, both examiners noted that the Veteran reported post-
service occupational and recreational noise exposure from his
mechanical work on boat, car, and truck engines.
In May 2007, The Veteran was afforded a VA audiological
examination. The VA examiner diagnosed the Veteran with
bilateral hearing loss, and the audiogram results from that
examination showed that the Veteran had bilateral hearing
loss as defined by 38 C.F.R. § 3.385. As noted above, the
May 2007 VA examiner concluded that there was insufficient
evidence in the record to determine that the Veteran's
disability is related to service without resorting to
speculation.
The Veteran's claims file also contains three recent private
audiology evaluations that showed that the Veteran has
bilateral hearing loss as defined by 38 C.F.R. § 3.385. None
of the evaluation reports contained a medical nexus opinion
that the Veteran's bilateral hearing loss is related to his
service. See September 2006 and June 2008 Audiogram
Evaluation Reports from Ear, Nose, and Throat Associates of
South Florida; see also March 2007 Audiogram Evaluation
Report from Wal-Mart Amplifon Hearing Aid Center.
At the June 2008 hearing conducted by the Decision Review
Officer, the Veteran testified that he began to notice his
hearing loss approximately five years after service, but he
did not seek treatment for his hearing loss until ten years
ago.
Conversely, at the March 2009 Travel Board hearing at the RO,
the Veteran testified that he began to notice his hearing
loss during service and that it continued to decline after
service. He further testified that he had attempted to
correct his hearing loss himself through store-bought hearing
aids prior to 2000, but it did not improve his hearing.
The record clearly shows that the Veteran has a current
diagnosis of bilateral hearing loss as defined by 38 C.F.R.
§ 3.385. See May 2007 VA examination. Further, based on
the Veteran's Military Occupational Specialty (MOS) as a
mechanic, VA concedes that the Veteran has been exposed to
inservice noise from ship engines. The sole remaining
question is whether the Veteran's current hearing loss
disability is related to service.
As mentioned above, the May 2007 examiner concluded that he
could not determine whether the Veteran's disability was
related to service without resorting to speculation. A
finding of service connection may not be based on a resort to
speculation or remote possibility. See 38 C.F.R. § 3.102
(2008). A number of Court cases have provided discussion on
this point of weighing medical opinion evidence. See, e.g.,
Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence
favorable to the Veteran's claim that does little more than
suggest a possibility that his illnesses might have been
caused by service radiation exposure is insufficient to
establish service connection); Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992) (medical evidence which merely indicates
that the alleged disorder "may or may not" exist or "may or
may not" be related, is too speculative to establish the
presence of the claimed disorder or any such relationship).
None of the private audiology reports indicated whether the
Veteran's hearing loss is related to service. Therefore,
there is no medical nexus evidence to the link between the
Veteran's current disability and his service.
Finally, the preponderance of the evidence is against the
finding that his hearing loss manifested to a compensable
degree within one year of separation from active duty. 38
C.F.R. §§ 3.307, 3.309. Although at the time of the March
2009 Travel Board hearing, the Veteran testified that he
began to notice his hearing loss during service and that it
continued to decline thereafter, he also testified in the
June 2008 RO hearing that he did not notice his hearing loss
until five years after service. See Maxson v. Gober, 230
F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years
between discharge from active service and the medical
documentation of a claimed disability is evidence against a
claim of service connection).
The Veteran's lay statement describing the onset of hearing
loss symptoms is considered to be competent evidence. See
Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Competency,
however, must be distinguished from weight and credibility,
which are factual determinations going to the probative value
of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74
(1997). The inconsistency in the Veteran's statements about
the onset impacts the reliability of his statements.
Further, the fact that he did not seek treatment for his
disability until September 2000, over five decades after
service, weighs against a finding that his hearing loss
manifested to a compensable degree within one year of
separation from active duty.
Based on the foregoing, the Board finds that the
preponderance of the evidence is against the Veteran's claim
of service connection for bilateral hearing loss.
Consequently, the benefit-of-the- doubt rule does not apply,
and the claims must be denied. 38 U.S.C.A. § 5107(b) (West
2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Entitlement to service connection for bilateral sensorineural
hearing loss is denied.
____________________________________________
N. R. ROBIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs